Citation Nr: 1544097
Decision Date: 10/15/15 Archive Date: 10/21/15
DOCKET NO. 15-03 806A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California
THE ISSUES
1. Entitlement to an effective date prior to June 4, 2013 for the grant of service connection for bilateral hearing loss.
2. Entitlement to an effective date prior to June 4, 2013 for the grant of service connection for tinnitus.
REPRESENTATION
Veteran represented by: California Department of Veterans Affairs
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Nicole L. Northcutt, Counsel
INTRODUCTION
The Veteran served on active duty from May 1955 to April 1958.
These matters are before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in October 2013 by the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA).
Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket.
In September 2015, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.
FINDING OF FACT
There are no correspondences of record received prior to June 4, 2013 that could be construed as service connection claims for tinnitus or bilateral hearing loss.
CONCLUSIONS OF LAW
1. The criteria for an award of an effective date prior to June 4, 2013 for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015).
2. The criteria for an award of an effective date prior to June 4, 2013 for the grant of service connection for tinnitus have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
VA's Duties to Notify and Assist
VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015).
The appeal arises from a disagreement with the effective dates initially assigned after service connection was granted for these two claims. Once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice is no longer required because the claim has already been substantiated.
VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015).
The Veteran's service treatment and personnel records have been obtained. Post-service treatment records have also been obtained. A medical examination was provided to the Veteran in connection with his claims. No additional development is necessary as the claims turn on when the Veteran's claims were filed. All records potentially relevant to these matters appear to be of record. Thus, VA's duty to assist has been met.
Earlier Effective Date Claims
The Veteran is seeking effective dates commensurate with his discharge from service, as he asserts that his bilateral hearing loss and tinnitus began during and have persisted since service. The Veteran acknowledges that he did not file a service connection claim for these disabilities until June 4, 2013 (the effective date currently assigned for both claims), but states that he only failed to file a claim upon his discharge from service because he was not advised of his eligibility to do so.
Section 5110(a), title 38, United States Code, provides that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim . . . of compensation . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection "will be the date of receipt of the claim or the date entitlement arose, whichever is the later."
A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p).
Any communication or action indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claims must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155.
The Veteran's first formal application for VA compensation (VA Form 21-526) was received on June 4, 2013, and in this application, the Veteran sought service connection for bilateral hearing loss and tinnitus. As this was the first correspondence of record in which the Veteran asserted that he had service-related bilateral hearing loss and tinnitus, the RO assigned the effective date of June 4, 2013 when granting these service connection claims in an October 2013 rating decision. In that regard, while the Veteran had sought educational benefits and submitted related claims in the 1970's, none of the correspondences related to his educational benefits refer to his hearing impairments and thus cannot be construed as related service connection claims. Thus, as there is no correspondence of record received prior to June 4, 2013 that can be construed as a service connection claim, there is no basis for awarding an effective date prior to June 4, 2013.
The Board finds sympathetic the Veteran's assertion that he did not seek service connection for his auditory impairments soon after service because he was unaware of his ability to do so, and the Board regrets that the Veteran was unaware of his potential eligibility for service-connected compensation. However, VA is unable to grant a service connection claim until a Veteran informs VA of that he or she has such a service-related disability, and VA has granted benefits effective from the first date such notice was received. Per statutory restrictions, as enacted by Congress, the Board has no legal authority to grant an effective prior to the date of receipt of a claim.
In sum, the preponderance of the evidence is against the claims seeking earlier effective dates; there is no doubt to be resolved; and effective dates prior to June 4, 2013 are not warranted.
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ORDER
An effective date prior to June 4, 2013 for the grant of service connection for bilateral hearing loss is denied.
An effective date prior to June 4, 2013 for the grant of service connection for tinnitus is denied.
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RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs